This case is before the Authority on a negotiability appeal filed by
the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management
Relations Statute (the Statute), and concerns the negotiability of one
proposal, which establishes a Liaison and Familiarization Travel program for
Air Traffic Assistants (ATAs).

For the reasons that follow, we find that the proposal is within the
duty to bargain.

The Agency asserts that the proposal is contrary to a Government-wide
regulation and, under section 7117(a)(1) of the Statute, is nonnegotiable.
Following is the Agency's argument in its entirety:

Executive Order 12[6]74 as modified by EO 12731 and 5 CFR 2635.01 et.
seq., Standard[s] of [Ethical] Conduct for Employees of the Executive Branch, a
government-wide regulation prohibits the acceptance of gifts by federal
employees. Deleting all references to the [Liaison and Familiarization Travel]
program as [] training programs, results in allowing the ATAs to accept free
air travel for personal use. Free air travel for personal use is considered a
gift prohibited by the Standards of [Ethical] Conduct for Em[p]loyees of the
Executive Branch.

Supplemental Statement of Position at 2.

B. Union

The Union claims that the proposal would provide ATAs the same
conditions of employment as Air Traffic Controllers (ATCs) by offering
"familiarization with the operation of the aircraft equipment and
communications from the flight crews['] perspective[,]" as well as "the benefit
of free air travel." Response at 5. The Union also claims that the program
"would enhance the ATA's job performance and promotional opportunities."
Id. The Union argues that the "program would no more constitute a gift
for ATA[s] than it does for any other employee of the Agency." Reply to
Supplemental Statement of Position at 2.

IV. Meaning of the Proposal

The parties have not provided information about the Liaison and
Familiarization program for ATCs, and the Union has not explained how the
proposal is intended to operate. As plainly worded, Section 1 of the proposal
provides, among other things, that ATAs who are "certified" are eligible to
participate in "the national standardized familiarization program." Sections 2,
3, and 4 address standards and procedures for administration of the program.
Sections 5 and 6 provide for the Agency to approve trips for ATAs on approved
leave days, regular days off, and on duty time when the Agency has assigned an
ATA duties at the outbound destination.

Under sections 7 and 9 of the proposal, the program would encompass up
to eight domestic trips and one international trip each year; Section 8
provides that ATAs may use different air carriers for different segments of a
trip. Section 10 states that if there is any commuting involved on a duty trip,
it is at no expense to the government. Section 11 requires that ATAs submit a
request to the Agency for familiarization travel at least 3 days prior to
the day they intend to travel to allow for internal processing of the request.
Section 12 provides that an ATA traveling on an assigned duty day will be paid
the same amount as if he or she had worked a regular shift, and that an ATA
traveling on off-duty days will not receive pay, overtime, or compensatory
time.

V. Analysis and Conclusions

The Agency's entire argument is quoted above. As is apparent from
examining the argument, the Agency cites only to the Executive Order and its
implementing regulations, the Standards of Ethical Conduct for Employees of the
Executive Branch (Standards of Ethical Conduct). The Agency does not cite any
specific section of either the Executive Order or the regulations in support of
its contention that the Union's proposal conflicts with Government-wide
regulation, and the Agency does not offer any arguments establishing a basis
for its contention.

It is well established that the parties bear the burden of creating a
record upon which the Authority can make a negotiability determination.
American Federation of Government Employees, Local 1995 and U.S. Department
of Energy, Morgantown Energy Technology Center, Morgantown, West Virginia,
47 FLRA 470, 472 (1993) (Morgantown). A party that fails to assert the
specific provisions of law upon which it asserts a proposal is nonnegotiable
acts at its peril. Patent Office Professional Association and U.S.
Department of Commerce, Patent and Trademark Office, 41 FLRA 795,
820 (1991); seeNational Federation of Federal Employees, Local 1167
v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982) (finding that the parties are
responsible for directing the Authority, with as much specificity as possible,
to the statutes and regulations relevant to an agency's duty to bargain, and
that the Authority is not expected, suasponte, to locate,
analyze and apply all arguably pertinent statutes and regulations).

In this case, the Agency makes only a bare assertion that the proposal
conflicts with a Government-wide regulation. We conclude that this bare
assertion does not establish that the proposal is outside the duty to bargain
and, accordingly, we conclude that the proposal is within the duty to
bargain.(2)SeeMorgantown, 47
FLRA at 472-73.

VI. Order

The Agency shall upon request, or as otherwise agreed to by the
parties, negotiate over the proposal.

APPENDIX

The Union Liaison and Familiarization Travel proposal provides:

Section 1. All enroute and terminal bargaining unit members
who are certified in their respective positions are eligible to participate in
the national standardized familiarization program. Once a bargaining unit
member achieves eligibility, he/she is not again required to meet this
provision.

Section 2. The national standardized program shall include
standards and procedures pertaining to familiarization flying in air carriers,
private aircraft, and military aircraft. (Air Carrier includes any commercial,
commuter flight, or air taxi flights under Title 14, CFR, Parts 121, 135, or
298). No facility or regional office of the Employer shall add, delete, or in
any way alter the standardized familiarization program.

Section 3. The Parties recognize that familiarization travel
in air carriers involves procedures and internal regulations of individual air
carriers. Matters beyond the purview of the Employer include, but are not
limited to, number of trips per air carrier per year, dress code in the
cockpit, eligibility for participation, and procedures for application to
participate. The Parties recognize that any air carrier may suspend or abridge
their participation in the familiarization program at any time and that the
Employer has no jurisdiction over the conduct of the program by the individual
air carriers.

Section 4. The Parties recognize that private and military
operators determine their own internal regulations and procedures governing
flight familiarization by employees and that such regulations and procedures
are beyond the purview of the Employer to change, except in the case where the
stated procedures are contrary to the Employer's requirements for employee
participation.

Section 5. The employee shall be placed in official travel
status and paid per diem, if he/she is assigned duties at the outbound
destination as part of the familiarization trip. Approved familiarization
visits to other facilities or regional offices at the outbound destination to
observe the use of new equipment, facility operations and procedures, etc.,
during duty days are not assigned duties but shall entitle the employee to be
in duty status during his/her regularly scheduled shift. Both Parties recognize
that the standard government travel regulations require that employees be
placed on official travel status when assigned duties at the destination and,
further, that budgetary limitations govern the approval of familiarization
travel involving assignment of official duties.

Section 6. The Employer shall approve a familiarization trip
for approved leave days, regular days off and for duty days (if the Employer
assigns duties at the outbound destination) in any combination.

Section 7. Included in the national standardized program shall
be provisions for one (1) foreign overseas trip per calendar year. Foreign seas
travel under this Section shall be accomplished and charged as a non-duty trip.
Employees eligible under this Article may also travel to overseas domestic
locations, but such travel will not be considered as foreign overseas travel.
For the purpose of this Agreement, trips to Mexico and Canada shall be
considered overseas domestic.

Section 8. Employees are authorized to use different air
carriers or the same air carrier for different segments of the same
familiarization trip.

Section 9. Except where carriers have indicated they will
allow more than one (1) trip per year, employees shall be limited to no more
than one (1) familiarization trip per air carrier per year. Employees are
entitled to a maximum of eight (8) domestic/overseas domestic trips per
calendar year.

Section 10. Commuting trips shall be at no expense to the
government. If commuting is involved on any of the duty trips, the employee
shall commence his/her familiarization travel within eight (8) hours of the
time he/she departs his/her duty station. The employee shall be released from
his/her facility and will be considered on duty time for up to two (2) hours so
as to reasonably arrive at the departure airport one (1) hour prior to the
proposed departure time.

Section 11. Employees are required to submit all
familiarization requests to the facility in sufficient time to allow three (3)
administrative days for internal processing. This is in addition to the advance
notice required by the air carrier and time for mailing.

Section 12. An employee traveling on such a flight on his/her
regularly assigned duty day receives the same premium pay he/she would have
received had he/she worked his/her regular shift. For one (1) hour prior to the
proposed departure time and until one (1) hour after the actual arrival time at
the final destination the employee shall be considered on duty time. Premium
pay, overtime, or compensatory time/credit hours will not be paid to an
employee who is traveling on off-duty days.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

1. The proposal has been modified from
that which was contained in the Union's petition for review. The Agency
asserted that the original proposal was outside the duty to bargain because it
mandated specific training assignments and, thereby, violated management's
right to assign work under section 7106(a)(2)(B) of the Statute. In response,
the Union modified the proposal to eliminate the portions regarding training.
The Agency filed a supplemental statement of position in response, and the
Union filed a supplemental response. The Agency has not objected to our
consideration of the modified proposal. Moreover, the Agency did not renew its
argument regarding the right to assign work.

2. Even assuming that it were
appropriate to base a negotiability determination on an independent review of
the regulation, our cursory review demonstrates that there is an insufficient
record on which to determine that the proposal conflicts with the regulation.
For example, assuming that the air travel encompassed by the proposal
constitutes a prohibited "gift," as defined in 5 C.F.R. § 2635.203(b), the
Standards of Ethical Conduct provide that the Government may accept a gift
"under the authority of 31 U.S.C. [§] 1353 in connection with an
employee's attendance at a meeting or similar function relating to his official
duties which takes place away from his duty station." 5 C.F.R. §
2635.203(b)(8). Excluded from the definition of a gift is "[a]nything which is
paid for by the Government or secured by the Government under Government
contract[.]" 5 C.F.R. § 2635.203(b)(7). In addition, "[g]ifts
authorized by supplemental agency regulation" are exempt from the prohibitions
of the Standards of Ethical Conduct. 5 C.F.R. § 2635.204(k). There is
no basis in the record before us to ascertain whether these provisions provide
a basis on which